Native American water usage and rights
Native American water usage and rights have a complex and often contentious history, particularly as European American settlers expanded westward, leading to the dispossession of Indigenous water rights. The legal recognition of these rights began to emerge in the early 20th century, notably with the Winters decision in 1907, which acknowledged reserved water rights for Native American reservations. Throughout the latter half of the century, particularly in the 1970s, the issue gained prominence as various court cases spotlighted the ongoing disputes over water ownership and usage between tribal nations and state governments.
In the Pacific Northwest, conflicts over water rights are particularly acute due to high competition for limited water resources among agricultural, residential, and commercial fishing interests, alongside Native American tribes who have historically relied on these waters for fishing, especially salmon. Noteworthy legal decisions, such as the Boldt decision in the 1970s, affirmed tribal rights to a significant portion of the fish populations, although these rulings have often faced resistance. Moreover, environmental concerns, such as the impact of dams on salmon habitats, further complicate the dialogue surrounding water rights. Overall, the interplay of legal, environmental, and cultural factors continues to shape Native American water rights, highlighting the need for ongoing advocacy and negotiation.
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Native American water usage and rights
Tribes affected: Pantribal
Significance: Questions regarding ownership of, and rights to use, natural resources, including water, are among the most crucial issues currently facing American Indian tribes
As European American settlers moved farther and farther west across the continent, Native Americans lost most of their rights to the water they had once used freely. It was not until the twentieth century—and primarily the last two decades of the century—that courts began to recognize Indian rights to the water lying underneath or flowing through their lands. Water is among the most precious of resources in many parts of the United States, notably the Southwest. In 1907, a case known as the Winters decision first recognized the reserved water rights of reservations.
In the 1970’s, the protection of water rights began to gain recognition as one of the most important issues faced by American Indian tribes. Debate began to rage, and cases were taken to court, regarding crucial questions of whether a state or a tribe owned various water supplies. In addition to the issue of ownership are questions concerning the uses to which water can be put and regulation of access to water. In 1973, the National Water Commission (created by Congress) criticized the government’s failure to protect Indian water rights adequately. A number of cases in 1983 affected water rights. For example, the Supreme Court, in Nevada v. U.S., upheld the allocation of water rights to the Pyramid Lake Reservation in Nevada. On the other hand, the Court denied five tribes a requested larger allocation of Colorado River water (Arizona v. California), and it ruled in Arizona v. San Carlos Apache Tribe that state courts have the authority to decide cases involving Indian water rights (tribes were attempting to establish that only federal courts should have jurisdiction over these matters). In 1989, Secretary of the Interior Manuel Lujan announced that the Working Group on Indian Water Settlements, which would report to the Water Policy Council, would establish principles for guiding settlements and would assist in negotiations with tribes.
Pacific Northwest Issues
A closer examination of water rights issues in the Pacific Northwest provides examples of the difficulties involved in deciding such questions. Rainfall in the Pacific Northwest varies dramatically from the lush western half of the region, with an annual precipitation of up to 35 inches, to the arid Columbia Basin plateau, with an annual rainfall as low as 10 inches in certain parts. Because of the scarcity of this resource in parts of the Pacific Northwest, and a growing population as the West becomes an increasingly popular place to live, water is the most precious resource in the region. Sportsmen, farmers, Native Americans, those in commercial fishing, and residential users are all competing for water.
Courts throughout the West are deciding whose claims to the resource are the most legitimate. In the interior Pacific Northwest, for example, several rivers are the lifeblood of Indian society, with the Columbia River affecting the largest number. Pacific Northwest Indians traditionally have relied upon surrounding water resources for a rich fishing harvest, particularly salmon, making it imperative to preserve an adequate in-stream flow. In recent years, water has gained new importance because of irrigation. For example, the Yakimas have irrigation on their reservation and are now one of the parties involved in the adjudication of Yakima River water.
In the last half of the twentieth century, Pacific Northwest Indian claims for either water rights or compensation have met with limited success. In Pacific Northwest rivers, such as the Salmon River, it was evident by the 1950’s and 1960’s that there was not enough fish for everyone (sport and commercial fishing interests and Native Americans), and state officials decided that Indian fishing would have to be regulated. Before this, states had observed treaty provisions that allowed Indians to fish at “all usual and accustomed grounds and stations” and did not place limits on their catch at off-reservation sites. The tribes contended that the treaty provisions should still be in effect and resisted regulations in order to protect their Native American fishing rights; protests, such as fish-ins, and arrests occurred at fishing sites.
Court cases ensued, and two cases in 1968, United States v. Oregon and Sohappy v. Smith (they were consolidated into one), dealt with Indian rights to continue fishing at traditional sites and the assurance that at these traditional sites the Indians would be ensured a catch of salmon and steelhead. The federal judge ruled in favor of the tribes. The tribes have also won in cases regarding accessibility to fishing sites. In the case of U.S. v. Winans, the court ruled that Indians could cross private land to reach a traditional fishing site.
The next major case, in 1971, involved tribes in the Puget Sound area. Fourteen tribes argued that the Washington State department of fisheries regulations denied them a fair amount of the salmon and steelhead runs. The case, United States v. Washington, was heard by federal judge George N. Boldt, who ruled in favor of the tribes, concluding that they be allotted 50 percent of the fish run. The decision, known as the Boldt decision, was very unpopular, and state officials ignored it. Boldt’s ruling was brought before the Supreme Court, which upheld his decision.
Another area of concern for Pacific Northwest tribes has been the damming of rivers, which causes added pressure on the dwindling salmon and steelhead populations. The dams on the Columbia River have been built primarily to supplement irrigation flows, but they have cut the salmon population drastically, as salmon are denied a sufficient in-stream flow or are forced through fish ladders and suffer disorientation as they swim through warm reservoir water. These issues have still not been resolved, as environmental groups, irrigators, and tribes all press their claims. The construction of dams has also threatened traditional fishing sites. The Dalles Dam, built in 1957, flooded Celilo Falls, for which the Yakima Nation was awarded fifteen million dollars. Further debates over water in the Pacific Northwest will include the protection of habitat. If courts continue to find that the tribes are entitled to an equitable share of the fish population, the tribes will need to participate in decisions that affect the whole ecosystem of Pacific Northwest rivers.